[Ppnews] The Yoo-Bybee Memoranda

Political Prisoner News ppnews at freedomarchives.org
Wed Mar 4 12:40:20 EST 2009


March 4, 2009

The Yoo-Bybee Memoranda

Blueprints for a Police State


Seven newly released memos from the Bush Justice 
Department reveal a concerted strategy to cloak 
the President with power to override the 
Constitution. The memos provide “legal” 
rationales for the President to suspend freedom 
of speech and press; order warrantless searches 
and seizures, including wiretaps of U.S. 
citizens; lock up U.S. citizens indefinitely in 
the United States without criminal charges; send 
suspected terrorists to other countries where 
they will likely be tortured; and unilaterally 
abrogate treaties. According to the reasoning in 
the memos, Congress has no role to check and 
balance the executive. That is the definition of a police state.

Who wrote these memos? All but one were crafted 
in whole or in part by the infamous John Yoo and 
Jay Bybee, authors of the so-called “torture 
memos” that redefined torture much more narrowly 
than the U.S. definition of torture, and 
counseled the President how to torture and get 
away with it. In one memo, Yoo said the Justice 
Department would not enforce U.S. laws against 
torture, assault, maiming and stalking, in the 
detention and interrogation of enemy combatants.

What does the federal maiming statute prohibit? 
It makes it a crime for someone "with the intent 
to torture, maim, or disfigure" to "cut, bite, or 
slit the nose, ear or lip, or cut out or disable 
the tongue, or put out or destroy an eye, or cut 
off or disable a limb or any member of another 
person." It further prohibits individuals from 
"throwing or pouring upon another person any 
scalding water, corrosive acid, or caustic substance" with like intent.

The two torture memos were later withdrawn after 
they became public because their legal reasoning 
was clearly defective. But they remained in 
effect long enough to authorize the torture and 
abuse of many prisoners in U.S. custody.

The seven memos just made public were also 
eventually disavowed, several years after they 
were written. Steven Bradbury, the Principal 
Deputy Assistant Attorney General in Bush’s 
Department of Justice, issued two disclaimer 
memos – on October 6, 2008 and January 15, 2009 – 
that said the assertions in those seven memos did 
“not reflect the current views of this Office.” 
Why Bradbury waited until Bush was almost out of 
office to issue the disclaimers remains a 
mystery. Some speculate that Bradbury, knowing 
the new administration would likely release the 
memos, was trying to cover his backside.

Indeed, Yoo, Bybee and Bradbury are the three 
former Justice Department lawyers that the Office 
of Professional Responsibility singled out for 
criticism in its still unreleased report. The OPR 
could refer these lawyers for state bar 
discipline or even recommend criminal charges against them.

In his memos, Yoo justified giving unchecked 
authority to the President because the United 
States was in a “state of armed conflict.” Yoo 
wrote, “First Amendment speech and press rights 
may also be subordinated to the overriding need 
to wage war successfully.” Yoo made the 
preposterous argument that since deadly force 
could legitimately be used in self-defense in 
criminal cases, the President could suspend the 
Fourth Amendment because privacy rights are less 
serious than protection from the use of deadly force.

Bybee wrote in one of the memos that nothing can 
stop the President from sending al Qaeda and 
Taliban prisoners captured overseas to third 
countries, as long as he doesn’t intend for them 
to be tortured. But the Convention Against 
Torture, to which the United States is a party, 
says that no country can expel, return or 
extradite a person to another country “where 
there are substantial grounds for believing that 
he would be in danger of being subjected to 
torture.” Bybee claimed the Torture Convention 
didn’t apply extraterritorially, a proposition 
roundly debunked by reputable scholars. The Bush 
administration reportedly engaged in this 
practice of extraordinary rendition 100 to 150 times as of March 2005.

The same day that Attorney General Eric Holder 
released the memos, the government revealed that 
the CIA had destroyed 92 videotapes of harsh 
interrogations of Abu Zubaida and Abd al Rahim al 
Nashiri, both of whom were subjected to 
waterboarding. The memo that authorized the CIA 
to waterboard, written the same day as one of 
Yoo/Bybee’s torture memos, has not yet been released.

Bush insisted that Zubaida was a dangerous 
terrorist, in spite of the contention of one of 
the FBI’s leading al Qaeda experts that Zubaida 
was schizophrenic, a bit player in the 
organization. Under torture, Zubaida admitted to 
everything under the sun – his information was virtually worthless.

There are more memos yet to be released. They 
will invariably implicate Bush officials and 
lawyers in the commission of torture, illegal 
surveillance, extraordinary rendition, and other violations of the law.

Meanwhile, John Yoo remains on the faculty of 
Berkeley Law School and Jay Bybee is a federal 
judge on the Ninth Circuit Court of Appeals. 
These men, who advised Bush on how to create a 
police state, should be investigated, prosecuted, 
and disbarred. Yoo should be fired and Bybee impeached.

Marjorie Cohn is president of the National 
Lawyers Guild and author of 

Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

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